By Carla Varriale
Venue owners and operators are often armed with defenses, such as assumption of the risk, in negligence actions that are brought by spectators who are injured by errant baseballs and flying pucks. Spectators, however, may not consent to reckless or intentional conduct by other spectators. When spectators injure other spectators under these circumstances, the exculpatory language set forth on the spectator’s ticket may be void and against public policy. In order to assess (and to prevent) potential liability, a prudent venue owner or operator should understand the underlying legal concepts. With this understanding, an effective security program and enhanced risk management strategies can be developed. This can diminish the potential exposure of a venue owner or operator and at the same time, support the defense of negligence actions brought against them.
A negligence action requires proof of a duty owed, a breach of that duty and damages proximately flowing from that breach. In the context of whether a venue owner or operator is liable when one spectator negligently or intentionally harms another spectator, a court will consider whether it had a duty to protect the spectator, whether it breached that duty and whether the breach of the putative duty was the proximate cause (or “substantial factor”) in bringing about the alleged damages.
Spectators are “business invitees”, i.e. persons invited to the premises for a mutually beneficial purpose. The duty of care owed to business invitees is known as reasonable care under the circumstances. This standard is deceptively simple: although the possessor is not an insurer of a spectator’s safety, the possessor has a duty to exercise reasonable care if the possessor knows, or should have known, of a potentially dangerous condition. When a spectator harms another spectator through his or her violent conduct, this standard can become a fine (and sometimes confusing) line.
The primary inquiry is what is foreseeable under the circumstances. Although several “tests” have been articulated by the courts, such as whether there is evidence of prior similar acts, forseeability essentially boils down to whether the owner or operator could have anticipated the violent conduct (although it need not have foreseen the exact conduct at issue).
Whether an unruly spectator’s conduct was foreseeable is grist for the litigation mill. For example, when spectators scrambled to catch a foul ball at a baseball game and injured another spectator, a court determined that a premises owner or operator may be liable for a failure to take steps to protect the injured spectator. See Lee v. National League Baseball Club, 4Wis.2d 168, 89 N.W.2d 811, 816 (1958) (question presented whether defendant failed to take appropriate measures to restrict the conduct of spectators who trampled plaintiff); Hayden v. University of Notre Dame, 716 N.E.2d 603, 607 1999 Ind. App. Lexis 1697 (University owed plaintiff a duty to take reasonable steps to protect her from injury due to actions of other fans attempting to retrieve football); Telegra v. Security Bureau, Inc., 719 A..2d 372, 376 (Pa. Super. 1998), appeal denied, 560 Pa. 687, 742 A.2d 676 (1999)(court declined to apply “no duty” rule where a spectator was attacked by other spectators who sought a souvenir ball in the end zone because being attacked by an unruly mob at a football game was not an inherent risk associated with the activity). But see Maheshwari v. City of New York 2N.Y.3d 288, 810 N.E.2d 894, 778 N.Y.S. 442 (2004) (negligence action dismissed because, among other things, the random and unprovoked attack in parking lot outside of concert was not a foreseeable result of a purported security breach).
Sports, recreation and entertainment venues are fertile ground for potential negligence actions. A venue operator or owner should comprehend the sort of risks that are known (or should have been known in the exercise of reasonable care) and minimize them in order to avoid such actions. The cases discussed here highlight the need for effective risk-management strategies, including an assessment of the spectrum of risks presented, providing adequate warnings and, significantly, deploying a properly trained security presence. A venue owner or operator should also consider risk-shifting or risk-spreading mechanisms such as insurance coverage and contractual agreements. These mechanisms should be analyzed in conjunction with insurance professionals and counsel.
When a negligence action as a result of a spectator’s unruly conduct is unavoidable, the underlying facts and the applicable law will dictate the litigation strategy. Both should be thoroughly analyzed. If an assumption of the risk defense is not viable, a venue owner or operator can still pursue potentially dispositive defenses regarding the elements of forseeability and causation. When it comes to avoiding or defending a negligence action arising out of the actions of spectators, a reasonably prudent venue owner or operator should not “assume” anything.
Carla Varriale is a partner at the law firm of Havkins, Rosenfield, Ritzert & Varriale and can be contacted by email at Carla.Varriale@hrrvlaw.com. This article was reprinted with permission of the International Association of Assembly Managers and Facility Manager magazine. For more information on IAAM visit www.iaam.org.
